december 2017

About Thompsons

Thompsons is the UK's most experienced firm of trade union, employment rights and personal injury lawyers. The firm has over 20 offices, operating in England, Northern Ireland, Wales and Scotland. On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.

Thompsons Solicitors can offer many case examples to the Commission which will assist in addressing some of the key questions in this consultation and which illustrate how little protection UK employment laws provide to vulnerable workers.

The vast majority of people Thompsons represent, in both employment rights, personal injury and criminal cases, are vulnerable workers.

These include low paid women in the public sector, migrant workers, disabled workers, agency and casual workers, young and older workers.

Rather than answering each of the Commission’s questions, we will address those that our case studies most clearly illustrate.

 

Thompsons position

Q1 Different factors that impact on he power relationship between employers and workers, and therefore place workers at risk of vulnerability.

Employment status: distinction between worker and employee

Employment status is possibly the single most significant factor that impacts on the relationship between employers and workers and places workers at risk of vulnerability.

There is significant difference in the coverage of employment protection between “workers” and “employees”.

Most workers can be divided into two categories: an employee who provides their services under a contract of services or a self employed person who is an independent contractor engaged under a contract of services.

Whether someone is an “employee” or a “self employed” person dictates the employment rights available to them.

For example, only employees have the right to claim unfair dismissal and statutory redundancy payments.

Though technically defined as “self-employed” many workers actually do the same work as employees under the direction of an employer and yet without the same protection.

The difference of entitlement to protection is based simply on the legal status of the worker and it follows that the most vulnerable workers end up with the lower status of “worker” or “self employed”.

Thompsons sees employment practices which deliberately, yet often legally, define casual, temporary and agency workers as self employed and therefore exclude them from many basic employment rights. Our case study below of Polish baggage handlers illustrates how this can be done.

Gaps in coverage of employment law protection for vulnerable workers such as migrant and agency workers can have severe implications for them.

Nowhere is the inequality in employment faced by agency workers more stark than in their treatment in law. We refer the Commission to our response the government’s consultation Success at Work – DTI consultation on measures to protect vulnerable agency workers (which we include as Appendix 1) in which we illustrate through case law and case study how, at the root of agency workers’ vulnerability is the uncertainty about their employment status.

That employment status was not included in the government’s consultation meant that the government’s aim of providing measures to protect vulnerable agency workers was illusory. The distinction between worker and employee should be ended so that there is no advantage to an employer to try and enter into a contract for service as opposed to contracts of employment.

Uncertainty over employment status leads to many other factors that place a worker at risk of vulnerability. They are unlikely to be aware of their rights at work or, if they are aware, less likely to seek to enforce them because of the fear of losing their job.

They are less likely to join a trade union, in part through fear of reprisal from the employer and because of the transient nature of agency work makes recruitment difficult.

Lack of union membership in turn denies them the protection that unions can afford, along with the resources that inform members of their employment rights and also of health and safety regulations.

And the nature of the work done (ie caring, cleaning, catering, manual, other blue collar) means that they are unlikely to have access to the Internet at work, and may not have at home.

Pay does not necessarily define vulnerability. Thompsons represented a well paid, long-term casual worker on the Daily Telegraph. His employment status denied him any pensions rights.

The TUC and the government should produce materials in several languages explaining the distinction between employment status and the impact on a workers’ employment rights. And any agency that registers to provide labour should be required to do the same.

Length of service

Many employment rights are based on an employee’s length of service. An employee is not protected, for example, from ordinary unfair dismissal unless they have been employed for a continuous period of one year or more. This makes migrant workers particularly vulnerable because evidence shows that they are more likely to be in transient jobs (a “contract” is commonly six weeks) and often don’t have the requisite year’s service before they lose their job.

Service qualification be removed or at least significantly shortened to no more than three months.

 

Unauthorised workers

Perhaps the most vulnerable workers are those who are not authorised to work in the UK. The difference between unauthorised and illegal workers is rarely understood.

The myth peddled by government and the press is that unauthorised work is carried out by people who enter the UK secretly or illegally for work in the informal economy.

This is not true. Many people engaged in unauthorised work are in fact entitled to be in the UK but are prevented from working because of their immigration status. Asylum seekers are not allowed to work unless they have waited over 12 months for an initial decision on their case, or have been granted permission to do so by the Home Office.

They are forced to rely on state support, which is 70% of income support. In these circumstances an asylum seeker often feels trapped into unauthorised working where they will then be exploited by unscrupulous employers. Unauthorised working may be the only way of getting enough money to give a child a nutritious meal, or indeed simply to travel to the Border and Immigration Agency in Croydon.

Rules that prevent asylum seekers working will not stop them doing so in those circumstances. The rules simply give employers the right to exploit them.

The Home Office’s recent threat to prosecute individual unauthorised “immigrant” workers in the security industry (13 December 2007) is an entirely inappropriate response.

Long term we want to see immigration status changed. Immigration status not only restricts a person’s ability to work and makes them vulnerable to rogue bosses, it also continues to deny even those authorised to work the same employment rights as a UK national.

We recommend that restrictions on asylum seekers working until their applications have been processed should be removed. It is legitimate to insist that they have a work permit and that this is reviewed every six months.

The UK should also look to other EU states where programmes of regularisation directed at undocumented and rejected asylum seekers have resulted in significant numbers of asylum seekers receiving work and residence permits. These are effectively an amnesty for all people working in these circumstances.

 

Gangmasters

The scope of the Gangmasters Licensing Authority must be extended to the construction industry, where as many abuses of migrant and agency labour takes place as in the agriculture, horticulture, shellfish gathering and food processing and packaging sectors.

Payments to Agencies and Intermediaries

It is a criminal offence for employment agencies to demand payment in return for the offer of employment. This law is often flouted. Bogus charges are made by employers for the offer of work. Our case study below of Filipino Nurses who came to the UK to work in a private care home highlights this.

The principle that workers should not have to pay agencies should be re-affirmed in legislation and properly enforced. Penalties for offenders must provide a serious deterrent. Any contract to or arrangement for the payment of such fees should be unenforceable. The rule of non-charging should also make clear that it applies to other types of payment as well as direct payment and should apply to payments made outside the UK as well.

There should be a requirement on agencies and intermediaries to provide workers with written terms and conditions, which include a statement that there is no charge to get work and which spell out the purpose of any additional charges, in their language – something that unions could offer to facilitate where employers are likely to find this difficult.

Minimum Wage

Vulnerable workers are more likely to be paid less than the minimum wage. If they are unauthorised they are unlikely to want to risk reporting a rogue employer. And workers who do not speak or read English may not be aware of the minimum wage. Rogue bosses therefore have ample opportunity to exploit vulnerable workers by underpaying them.

In spite of the government’s latest crack down, penalties for non payment remain too lenient. Employers who break the law should face a penalty of a remedial orders similar to those contained in the Corporate Manslaughter Act, where an employer is ordered to take certain measures and to publicise the fact of this order.

The proposal to pay all arrears to the worker at the current NMW rate is welcome. However, employers should also be charged interest on arrears. Crucially there should be an amnesty for unauthorised workers who report their employers.

 

Q2. What are the employment experiences of vulnerable workers like?

The employment experience of vulnerable workers is unlikely to be the same as of workers as a whole. Because they are likely to be in more transient jobs they often fall outside the protection afforded to workers in more traditional employment relationships.

Below are a number of case studies that show the experiences of vulnerable workers and also underline the measures suggested above that need to be taken to find solutions to vulnerable employment.

These are all real cases in which Thompsons has represented the individual worker or group of workers. Bearing in mind our comments above about union membership, in each of the cases below, the individual/s was a union member and was able to get legal advice and representation from Thompsons via their union. They are therefore just a snapshot of a what is essentially a hidden issue which makes assessing the scale of vulnerable employment (Q3) extremely difficult.

 

Employment law

Employment status. Employers are aware of the implications of employment status and will often, with the help of their lawyers, prepare documents which will attempt to define the status as “self-employed”.

Company S operating out of Stanstead Airport recruited Polish baggage handlers via a related company. Each baggage handler was set up as a director of a limited company in their own right after S bought several off the shelf companies.

Each “director” then hired themselves out as labour to S. As far as S were concerned the Polish baggage handlers were not their employees but were employees of the individual baggage handlers companies.

The Polish workers received inferior terms and conditions, including pay, to their British counterparts directly employed by S for carrying out the same work. The Polish workers would have had far more difficulty in enforcing any rights such as the right not to be unfairly dismissed, simply because of their employment status.

Migrant workers / gangmasters. Thompsons is acting for Unite in the case of 20 Hungarian workers being supplied by a major employment agency in the East Midlands, Butchery and Abattoir Services, to work at Cranberry Foods, the UK’s second largest poultry producer.

An unlicensed gangmaster recruited the workers in Hungary. They were forced to pay an arrangement fee of £350 to secure the work which was deducted from their pay packets without their consent. Accommodation charges of up to £40 a week are also deducted.

They are being paid just £3 an hour.

They do not speak English and were originally not registered under the Worker Registration Scheme. This means that their employment was illegal and that they are unable to rely on key rights. The collective and individual claims they have can only be pursued for the period that they have been registered.

The men and women are being housed in former RAF army camps surrounded by barbed wire. They are ticked in and out each day by their gangmasters.

They work long hours to the point of collapse and are often threatened with violence. They are told they will lose their jobs if they complain.

Threats have also been made against their families in Hungary.

Some have been injured at work but have not been given medical treatment. When a roof fell in and their clothing was saturated they were made to continue working.

When a Thompsons lawyer met the workers none of them had more than £5 each.

Claims for race discrimination and abuse of employment rights are being pursued on behalf of nine of the workers.

Migrant agency worker. A polish woman's first job in the UK was through an agency. She spoke to a woman at the agency who was herself Polish and who made her sign a document she did not understand.

The client was told that she needed to turn up to the factory at a given time. The factory told her on a day to day basis what hours she had to work and when she was needed.

The client found out about holiday pay and raised this with the agency. She was at first told that someone would get back to her, and later, when she asked again, that the agency did not have time for her (even though she had introduced another worker to them).

The woman left to work for another agency. A claim for holiday pay against the first agency could not be pursued because it changed its name and could not be traced.

Disabled worker. A severely disabled worker was first employed on a casual basis initially for six months to work on a specific project. Therefore he did not apply to join his employer's pension scheme. However his contract of employment was subsequently renewed eight times, twice following the completion of the project, giving him continuous service of around 4.5 years.

When his contract was eventually not renewed, the employer paid him redundancy pay, thereby treating him as an employee in one respect. But it also treated his as a casual worker by not affording him the same opportunity for redeployment, lengthy consultation and notice pay.

The worker unsuccessfully applied for two suitable posts during his last month of employment. Thompsons is seeking re-engagement or compensation on the basis that the employer clearly failed to consider, under the Disability Rights Regulations, what reasonable adjustments it could have made in order for the disabled man to carry out the duties required in these posts.

Agency worker. An agency nurse (bank nurse) was denied the right to annual leave from 2004 to the present. As a result of his grievance his employer paid him some rolled up holiday pay which the nursing home implemented in September 2006, although the ECJ had outlawed this practice.

However the employer refused to compensate him for previous years.

Given the practice of providing rolled up holiday pay is unlawful the man’s trade union was advised to write to the home and request that this practice be ceased, inform them of a worker's right to take annual leave and advising them to compensate bank staff to avoid legal action against them.

Intermediary charging for work. Thompsons acted in the case of 25 Filipino nurses recruited in the Philippines to work in a private care home. They were each charged around £4,000 which was said to be for their air fare and to put them through a course in order to register them for work.

The cost of the course was around £100. The cost of the air fare no more than £500.

Most of these nurses were highly qualified. Yet they were treated by the care home as cleaners, cooks, and carers. They were locked in their rooms at night, they were forced to work when ill, they were denied any privacy.

And they were paid significantly less than their British colleagues.

After one nurse contacted UNISON they were all recruited to the union and found jobs in the NHS. Their claims against the home were settled.

The evidence is however that the home simply turned to India to replace them.

Low paid women workers. Thompsons advised a union shop steward in relation to caterers who had been transferred to another company, subsequently had their holiday pay reduced and were no longer given time off in lieu (TOIL) for the overtime they worked. This means they are effectively working for free. The grievance procedure is being followed as a consequence.

Thompsons sees many examples of women caterers, carers and cleaners being TUPE transferred and then dismissed or given less favourable terms and conditions.

 

Personal injury

As with workers whose employment rights gave been breached, many of those injured at work are vulnerable workers. Breaches of health and safety are most commonly seen in workplaces employing migrant, agency, young and low paid workers. The health and safety record of the construction industry is well documented.

Thompsons has joined trade union calls for roving health and safety reps for the construction and other industries. A recently published article on this issue is attached as Appendix 2.

The reality of the employment experiences of many migrant workers means that while there is much anecdotal evidence of injuries at work, including in the case of the Hungarian poultry workers, accidents are rarely reported and personal injury claims hardly ever pursued.

Young worker. Thompsons acts for the family of Daniel Dennis, a 17 year old who was killed in his first week of work in April 2003.

Daniel died after falling through a skylight on the roof of a Matalan store in Cwmbran, Gwent. He had been sent to get timber being stored on the roof but had no safety training, had not been given training for working at heights, was not wearing a harness and the skylight area had not been fenced off.

Daniel’s father, Peter Dennis, had warned the employer that his son had received no prior safety training and should not work at heights.

At an inquest on 15 March 2005 in Newport, the jury took less than 10 minutes to reach a verdict of unlawful killing. After representations to the CPS the family was informed that gross negligence manslaughter charges would not be brought.

Thompsons successfully judicially reviewed this decision and the CPS has now brought charges against Daniel’s employer.

Temporary workers. Thompsons acted for eight men working as tomato pickers at a grower in Kent. While working in a greenhouse they were exposed to carbon monoxide fumes. They started to feel sick and woozy and their team leader told them to get outside.

They reported the incident to their employer, who tells them they are imagining it. After two hours of sitting in the canteen they felt no better and decided to go to hospital. Their employer tried to stop them but all but one went.

The hospital diagnosed carbon monoxide poisoning and they were treated on oxygen masks for the rest of the day. They were told that if they had not left the greenhouse when they did they could have died.

All eight were TGWU members. Thompsons submitted claims for compensation on their behalf. The employer made a derisory offer of around £400 each. This is refused so the claim was lodged with the court. However, the employer was successful in arguing that the claims should be treated as small claims.

Whether due to pressure from the employer, or concern that they would not get further work if they pursued the case through the small claims court, the team leader advised his colleagues to accept the employers offer.

Migrant worker. Thompsons won compensation for a Romanian student who suffered brain damage when she was flung from an open back truck as it took her and other Eastern European workers to pick beetroot. They had been effectively herded into the back of the truck and transported like livestock. The young woman returned to her family and was likely to need care for the rest of her life.

 

Criminal cases

Thompsons’ criminal law unit acts for working people accused of criminal acts within their employment. Many of these are low paid and may also be older workers and may not speak English as their first language. Most commonly they have been arrested and interviewed by the police in relation to very spurious claims of assault and theft.

We act for a 60 year old auxiliary nurse. A patient claimed that she was roughly handled during a bed bath and described someone broadly matching our client’s description.

The accused started as an auxiliary nurse when she was 18 and had never before faced allegations of this nature. She was very aware of the necessity to be gentle with older patients and maintained that her actions in no way caused or contributed to the bruising.

The incident was alleged to have occurred at the beginning of April 2007. The woman was interviewed under caution by the police on 22 June. She found out in October that her case was being sent to the Home Office.

The police visited her home on 12 October 2007 to discuss a pathology report which revealed that the bruising on the patient occurred after she left hospital so our clients actions could not have been the cause.

On 15 October we were finally told that no further action would be taken. Our client was extremely upset throughout these allegations and was diagnosed with shock by her doctor and given medication.

Thompsons acts for a 63 year old care worker who is accused of bruising a service user’s arm whilst dressing her. She has no knowledge of this and does not understand why she has been accused.

On 8 August 2007 she was dressing the service user with a colleague and putting her to bed. The next day the service user said “the black nurse hurt me while she was dressing me”. Our client was suspended from work immediately and then interviewed under caution by the police without a solicitor present on 22 August.

She was bailed to return to the police station on 11 September where a Thompsons solicitor attended with her. She was merely re-bailed to return at a later date.

The woman, who has been working in the care industry for a significant number of years, has had to have fingerprints taken and is suffering stress and trauma as a result of the ongoing allegations, which she continues to deny.

 

Appendix 1

SUCCESS AT WORK – DTI CONSULTATION ON MEASURES TO PROTECT VULNERABLE AGENCY WORKERS

RESPONSE FROM THOMPSONS SOLICITORS

Introduction

Thompsons is the UK’s most experienced firm of trade union, employment rights and personal injury lawyers. The firm has over 20 offices, operating in England, Northern Ireland, Wales and Scotland. On employment and industrial relations issues it acts only for trade unions and their members. Thompsons represents the majority of UK trade unions and advises on the full range of employment rights issues through its specialist Employment Rights Unit.

Thompsons is a major employer in its own right with 900 staff and recognises an independent trade union for collective bargaining in relation to all staff. Thompsons employs agency staff to cover occasional and exceptional increases in work.

The firm has advised on and pursued a number of claims on behalf of agency workers. We share our trade union clients’ concerns at the increased use of temporary agency workers to cover work on less favourable terms and conditions than permanent employees would be given.

Thompsons is accustomed to encountering employment practices which mean that most temporary and agency workers are excluded from many basic employment rights. But nowhere is the inequality in employment faced by agency workers more stark than in their treatment in law.

Our case study below demonstrates how agency workers may be unable even to pursue a legal case to establish their employment status because of current case law.

However, the vulnerability of agency workers in the workplace is such that they may not seek advice in relation to their rights at all. Unless a trade union is able to recruit them, something which in itself is difficult because of the transient nature of this part of the workforce, then agency workers are without effective support at work.

Thompsons has considered the proposals and questions put in this consultation paper and considers them to be wholly inadequate to its stated intention of “addressing bad practices that can affect the most vulnerable agency workers”. It is not enough to make changes in discrete areas of the operation of agencies or to provide agency workers with “top tips” on spotting rogue agencies in specific industries.

Nor is it enough to assume that abuses are not practiced by legitimate agencies or, indeed, by legitimate employers (as our case study below demonstrates).

We would suggest that the Temporary Agency Workers Directive provides a more appropriate opportunity for the UK government to give new rights and protection to vulnerable agency workers than this narrow consultation does.

For that reason this response will not address the specific questions put in the consultation. It will instead set out the case for laws that provide real protection and equality for vulnerable agency workers.

 

Employment status and rights

There are around 700,000 agency workers in the UK. The DTI’s consultation paper states that, over the last few years, a number of significant changes have been implemented to “ensure the flexibility hirer companies need and agency workers value is balanced by appropriate protections for agency workers”.

Thompsons welcomes these measures. We also welcome the government’s stated commitment to the underlying principles enshrined in the current draft Temporary Agency Workers Directive.

And yet agency workers remain an incredibly vulnerable part of the work force, typically found in the low paid, low skilled jobs of the care, catering and cleaning sectors.

While the government, in this consultation document, argues that agency work acts as “a gateway” to a permanent job, for the majority it does not because of the financial disincentives on end users to make agency staff permanent.

The consultation paper also states that agency work is “chosen” by some because they are not looking for permanent work, because it better enables them to balance the needs of work and home or because of the variety it offers.

While this is undoubtedly true for many, the fact that agency workers are frequently denied equal pay with the permanent workers with whom they work and are excluded from holiday, sick pay, pensions and maternity rights does not make for a convincing argument that most agency workers “choose” this work.

TUC research has shown that nearly half of all agency temps in the UK say they would prefer to be permanent staff but are temping because this is the only kind of work they can get.

What is telling in the consultation document is the assertion that “industry values the flexibility agency workers provide” and that “agency work is a key part of the labour market”. When the lack of employment status and rights of agency workers is considered in this context, this fact is hardly surprising.

At the root of agency workers’ vulnerability is the uncertainty about their employment status. Are they “employees” or workers? If employees, who is their employer? This is fundamental to the issue because many of the rights contained in the Employment Relations Act 1996, including the right to claim unfair dismissal, are granted only to “employees”.

The Secretary of State has the power to extend the protection of employment legislation to a specified description of individuals. Clarifying employment status is the single most important step the government could take towards protecting vulnerable agency workers.

In determining the status of workers supplied by employment agencies, the courts have traditionally ruled that, in the absence of an unambiguous provision to the contrary, these workers are not employees of either the agency or the end user. They are assumed to have a status of independent contractor engaged under a contract for services.

However, in Dacas v Brook Street Bureau [2004] the Court of Appeal overturned an EAT ruling that Mrs Dacus, an agency cleaner who had brought a claim of unfair dismissal against the London Borough of Wandsworth and Brook Street, was employed by the agency (the ET had decided she was employed by neither).

The CA ruled there was an implied contract of employment between the worker and the end user (the local authority).

This decision was later applied by the CA in Cable and Wireless Plc v Muscat [2006] where Mr Muscat, a telecoms specialist for a firm later taken over by Cable and Wireless (C&W), was told by his employer to become a “contractor” and to set up his own firm in order to continue to work for the organisation.

C&W however insisted that Mr Muscat’s services be provided via an employment agency. The agreement he entered into with the agency said he was not an employee of C&W. When he brought an unfair dismissal claim, the ET agreed that his employment had transferred to C&W under TUPE regulations and there was an implied contract of employment with C&W. The EAT disagreed but the CA agreed that he was a C&W employee.

But this apparent clarity has been confused by the subsequent EAT judgements in James v Greenwich Council [2006], Craigie v London Borough of Haringey [2007] and Wexham Park Hospitals NHS Trust v Kulubowila and others [2007], which have severely restricted a tribunal’s ability to imply a contract of employment into such relationships.

However, the EAT in James v Redcats [2007], which examined employment status and the meaning of “worker” for the purposes of the national minimum wage legislation, said that worker status requires a “mutuality of obligation”. If the “dominant purpose” of the contractual relationship is the provision of personal services then the person is likely to be a worker and therefore covered by the minimum wage legislation.

But until the Court of Appeal provides further clarification, employment tribunals are likely to require very strong evidence of an implied contract between the worker and the end user, making it difficult for trade unions and claimant solicitors to pursue such claims on behalf of agency workers.

 

Case Study

Thompsons acted for Roger Jackson, an Amicus member working for British Nuclear Fuels Limited. He and his colleagues had worked there, at the same site, for many years and were effectively treated as employees.

Employees however received a cost of living pay rise every year at around the rate of inflation. Mr Jackson and his agency colleagues either received no pay rise or received a significantly smaller one.

When Mr Jackson put in a grievance alleging he was an employee and that he was entitled to the same cost of living pay rise he was told that his contract was soon to end and that his employment would be terminated.

Although initially Thompsons, instructed by Amicus, brought a claim on Mr Jackson’s behalf for unlawful deduction of wages and unfair dismissal in the light of the CA decisions in Dacas v Brook Street Bureau and Cable and Wireless v Muscat, the effect of the subsequent EAT rulings listed above so narrowed the scope for the tribunal to find that Mr Jackson was an employee that Thompsons was forced to advise him to withdraw his claim.

BNFL employs several thousand agency workers across the country in a similar position to Mr Jackson.

It is a fundamental injustice that the key to being able to access the most important employment rights, including the right not to be unfairly dismissed and the right not to be unfairly dismissed without the use of the statutory disciplinary procedure is the strength of evidence of an implied contract of service with the end user.

It is clear from the EAT decisions above that there is nothing unlawful in what the employment agencies or end users do in their transactions with each other or the agency worker. They merely used the law to their advantage to avoid the employment rights which workers would have if they were directly employed by the end user.

That employment status does not form part of this consultation means that this uncertainty renders the government’s aim of providing measures to protect vulnerable agency workers illusory.

No less favourable employment conditions

The principle of no less favourable treatment on the grounds of status, whether that is the status of part time or fixed term worker, is now widely accepted even if not widely observed. We see no reason why the same principle cannot apply to agency workers, yet no where in the current consultation does the principle of equal and no less favourable treatment appear.

Whilst the Working Time Regulations 1998 have given temporary and agency workers entitlement to the statutory four week holiday and R v Secretary of State for Trade and Industry ex parte Broadcasting Entertainment Cinematographic and Theatre Union [2001] has ensured that this benefit accrues from day one of employment, agency employers often rely on ignorance of rights or alternatively seek to “roll up” holiday pay in the hourly rate. This undermines the right to paid annual leave.

There should be no less favourable treatment in relation to working time, rest periods, night work, paid holidays and public holidays, pay, pensions, work done by pregnant women and nursing mothers, children and young people and action taken to combat discrimination.

Agency workers are denied access to end users’ occupational pension schemes and are rarely provided with a comparable scheme by the agency. Unless pension rights are included in a package of equal rights for agency workers then they will continue to experience less favourable treatment in this important respect.

Information and consultation

Finally, as we have stated in previous responses to consultations on this issue, organisations using temporary workers should be obliged to provide information on the use of agency staff to their recognised trades unions. This should be with a view to reaching agreement on the maximum numbers of agency workers employed and for what duration.

As with the Fixed Term Employees Regulations, after a specified period of time agency worker contracts should be converted to permanent contracts of indefinite duration unless the employer can objectively justify the continuation of the agency contract. Agencies and employers must not be allowed to end a worker’s contract in order to avoid that obligation.

 

Appendix 2

Insurance Times 11 October 07

Get Creative about Safety

It was good to hear at the recent Department for Work and Pensions convened Construction Forum, which I attended as an observer, both employers and employer representatives stating their commitment to health and safety. But their comments that there is “no one single solution” was a cliché which is too often an excuse to avoid any specific commitments.

The scale of the health and safety crisis in the construction industry was disturbingly put in context by one trade union general secretary who pointed out that it has been safer to be a British soldier in Iraq where, since the war began, approximately 170 have been killed, than in the UK construction industry where over 300 have been killed in the same period.

The Construction Skills Certificate Scheme is positive. One million people have been registered on it so far. It requires minimum standards and, if enforced across all sites, will be a way forward.

But enforcement needs not only resources, but regulation to end the rogue practices within the “grey economy” where lip service is paid to health and safety and where fewer questions are asked about training and qualifications.

Every year there are some 50,000 applications for the just 7,000 apprenticeships on offer in the construction industry (surely in boom times we should be seeing more apprenticeships when there is clearly demand?). And yet all too often the successful ones give up their places as soon as they think they’ve acquired enough skills to make something approaching a living.

As vital and as welcome (and I got the impression as genuine) as the DWP’s initiative is, only significant funds and effective use of them will have an impact. Giving out leaflets at builders’ yards, one suggestion made at the forum, is not what the trade unions and safety campaigners have in mind.

An HSE representative at the forum got me thinking when he said that he would never have enough resources to police sites in the “old fashioned way”. He called for more creativity in enforcing health and safety.

Roving safety reps, jointly sponsored by government, industry and unions would certainly be a creative response and a more effective use of resources than inspections which employers know happen so rarely (once every 12 years is the most commonly quoted statistic) that they effectively ignore them.

Roving reps are incredibly valuable in targeting small and medium sized firms – the sites where accidents most frequently happen - and helping to change the health and safety culture within them. Employers (and insurers) with good health and safety have nothing to fear from their presence.

Roving reps, with their trade union backgrounds, know that the key issue is not exposure of the bad for the sake of it but working with employers to raise standards.

It was disappointing that the HSE’s recent worker involvement consultation did not produce new rights for safety reps – including the right to call an immediate halt to dangerous working practices. If this new found DWP energy is to mean anything, now is a chance to address that.

There may be no single solution to health and safety issues in the construction industry. But roving safety reps, with specific rights, proper resources and appropriate recognition are surely part of a solution.